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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO . CC77/22
(1) Reportable: No.
(2) Of interest to other Judges: No
(3) Revised.
Date 3 March 2025
Signature
In the matter between :
STATE
And
THABISO MLAMBO ACCUSED
Date heard : 19-27 February 2025
Date delivered : 03 March 2025
JUDGMENT
Munzhelele J
Introduction
[1] The matter before this Court concerns the alleged unlawful possession of a
prohibited firearm and ammunition where the accused alleges no knowledge of such
possession. The accused, Thabiso Mlambo, stands charged with contravening section 4
and 90 of the Firearms Control Act 60 of 2000, specifically for possessing a firearm with
an obliterated serial number without a license, permit, or written authorization, and for
unlawfully possessing ammunition.
[2] Section 4. Prohibited firearms. — (1) The following firearms and devices are
prohibited firearms and may not be possessed or licensed in terms of this Act, except as
provided for in sections 17, 18 (5), 19 and 20(1) ( b):
(a) (b) (c) (d) (e)
f) any firearm —
(i) (ii) (iii)
(iv) the serial number or any other identifying mark of which has been changed or
removed without the written permission of the Registrar.
[3] The State bears the burden of proving, through the facts and circumstances of this
case, that the accused was in physical control or had immediate control of the firearm
found by two police officers inside a bucket in his shack. Furthermore, the State must
establish that the accused did not have the necessary license, permit, or authorization.
(See Berg 1927 OPD 177 para 178 -179; S v Adams 1986 (4) SA 882 (A) at 890G —H.)
Regarding the contravention of Section 4, the State must demonstrate that the accused
was found in possession of a prohibited firearm because its serial number had been
removed without the written permission of the Registrar.
[4] In addition to proving possession, the State must establish that the accused was
aware that he had the firearm in his physical control. The accused must have had such
control over the firearm that it can be safely inferred that he placed it in the bucket,
concealed it with clothes and water behind the door, and thus was in possession of it.
(See Tsotetsie 1953 (1) SA 239 (T); Reddy 1962 (2) SA 343 (N).) The issue of intention
to possess is a question of fact, and the outcome often depends on inferences drawn
from circumstantial or direct evidence. (See Sebidi and Others v State [2023] ZANWHC
151 (29 August 2023) at para 47.) The mental element of animus requires not only
knowledge of the object's existence but also an awareness of exercising control over it.
(See Andile Makeleni and Another v State CA&R51/18, delivered on 26 March 2019 by
Van Zyl DJP, Eastern Cape Division, Grahamstown, para 10F.)
[5] The evidence before the Court is largely uncontested regarding the discovery of
the firearm. It is common cause that a Girsan 9mm Parabellum with a magazine and
fifteen live rounds was found in the place where the accused resided. These were found
in the presence of the accused and his friend, Rudolf Chauke. The firearm was
collected and sent for forensic analysis, where Warrant Officer Tintswalo Rikhotso
determined that it was a semi -automatic pistol with an obliterated serial number and
was fully functional. At the time of its recovery, the accused did not possess a license
for the firearm.
[6] The accused pleaded not guilty to Count 1, the unlawful possession of a firearm
with an obliterated serial number, and Count 3, the unlawful possession of ammunition
without a permit or license under Section 90 of the Firearms Control Act. The accused
did not disclose the basis of his defense during his plea but during cross examination
his defense was put to the state witnesses that he had no knowledge of the firearm.
[7] The State presented two witnesses to prove its case. Sgt. George S hibambo
testified that he and Sgt. Moroka Hans Mphabana were on patrol when they received
information about a firearm in a shack at 9[...] N[...] Street. They proceeded to the
location, knocked on the door, and were met by the accused. After identifying
themselves, they informed him of their reason for the visit and requested permission to
search the premises. The accused allowed them to search but he denied knowledge of
any firearm in his premises.
[8] A search was conducted, including a personal search of the accused and his
roommate, but nothing was found in their direct possession. Continuing their search,
Sgt. Mphabana discovered a bucket behind the door, which he handed to Sgt. Sibambo.
Upon emptying its contents outside the shack, a firearm was found at the bottom,
underneath clothes and water. When both were questioned about ownership and
licensing of the firearm , the accused was the one who allegedly admitted, without
coercion, that he had found the firearm in the mountain and brought it to his shack.
Following this admission, he was arrested, and his rights were explained to him. All this
happened in a matter of an hour and forty-five minutes before the arrival of the LCRC
police officer who arrived at 02:30 , if we are to use accused’s time .
[9] Rudolf Chauke, the accused’s roommate, remained silent and did not offer any
information regarding the firearm. The LCRC Constable Khumalo, arrived at the scene,
photographed the firearm and the scene inclusive of the shack and the inside of the
shack, and compiled a photo album marked as Exhibit D. The accused were detained at
03:30 at Mamelodi Police Station. The firearm was booked into SAP 13 and later
examined at the forensic laboratory, with results presented in Exhibit C. The accused
and his roommate were detained, as evidenced by Exhibit B1 -2.
[10] The accused testified in his defence , alleging that police officers had forced
entry into his shack at around 00:45. He alleges that the other police officers who were
present at the scene assaulted him. He alleges that this assault led him to admit that he
found the firearm at the mountain. He maintained that he had no knowledge of the
firearm’s origin, stating that he had left the bucket outside , while washing clothes and
only brought it inside after returning from accompanying his grandmother to the clinic.
He claimed that he confessed to finding the firearm in the mountains only because he
was being assaulted.
[11] Under cross -examination, the accused alleged that police officer Sibambo used
excessive force to enter the shack by kicking the door. The issue of kicking the door by
sgt. Sibambo was never put to him while he was in the witness box. Again under cross
examination , he claimed that he was assaulted before the firearm was found , which
allegation was never put to the witnesses. In fact, during the testimony of the police
officers , it was never disputed that before the firearm was found , accused was never
assaulted. This is new evidence brought during accused ‘s testimony. However, this
claim was never put to the police witnesses for their response. The accused claimed
that he was assaulted severely after the firearm was found and police officer
Lekganyane was present. This information about a police officer Lekganyane being
present , was new evidence which was never put to the police witnesses for their
response. However, the accused confirmed that the firearm was indeed found inside the
bucket but insisted that he had no knowledge of how it got there.
[12] During cross examination it came to light that leaving his items outside his shack
was a common practice and nothing unusual had ever happened before. This
admission inadvertently supports the State’s case, as it suggests that he maintained
control over his possessions, making it unlikely that an unknown third party placed the
firearm in the bucket without his knowledge.
[13] The accused’s testimony contained multiple inconsistencies. He alleged that police
officer Sibambo kicked the door to force it open, yet this was not put to the State
witnesses for their response despite the opportunity to do so. The witnesses were never
shown photo 7, which faintly shows a crack on the edge of the door, during their
testimony. As a result, it remains unclear whether the damage to the door existed
before the incident or whether this is an afterthought . The accused claimed he was
assaulted before the firearm was found, yet this was not mentioned to the investigating
officer or put forward during cro ss-examination of the State’s witnesses. His explanation
regarding the bucket also raised contradictions: he insisted that he routinely left his
items outside without incident, yet he simultaneously implied that someone else might
have placed the firearm in the bucket. This contradiction casts doubt on the credibility
and reliability of his claims.
[14] He further alleged that the police assaulted him while he was made to lie outside
the shack, which, according to him, explains why his clothes were dirty. However, it was
never put to the State witnesses that the dirt on his clothes was a result of him being
forced to lie outside. In fact, the police said that he was taken from the shack to the
police van. The State argued that there was no pre -incident photo evidence showing
that the accused’s clothes were clean. He informed the investigating officer that he was
assaulted and, as a result, admitted to possessing the firearm. However, his warning
statement does not indicate that he was assaulted into making this admission.
Furthe rmore, on his warning statement, he never clarified where the assault occurred,
who assaulted him, or for what reason. Therefore, the warning statement cannot be
regarded as corroboration for the forced admission made. Only later, in court, he
claimed that he only made the admission because he was being assaulted and that he
did not actually know where the firearm came from. The accused was formula ting his
evidence as he proceeded with his testimony. This taints his credibility. I find that the
accused made the admission to the police officers Sibambo and Mphabana without any
threats nor assault.
[15] Sgt. Sibambo and Sgt. Mphabana, in light of their testimony and the total ity of the
evidence presented, both officers provided clear and consistent accounts of their patrol,
the tip -off received, their subsequent search, and the discovery of the firearm. There
were no material contradictions in their evidence, nor were there any indications of bias
or fabrication. Their version of events was further corroborated by the forensic evidence,
including the photographs in Exhibit D and the forensic analysis in Exhibit C.
[15] The Court must consider whether the State has discharged its burden of proof
beyond a reasonable doubt. I have found that there is direct evidence supporting the
state’s case:
1. Police Testimony:
o Both Sgt. Sibambo and Sgt. Mphabana testified that they conducted a
search of the accused’s shack and found the firearm inside a bucket
behind the door.
o The accused was present during the search, and no one else claimed
ownership of the firearm.
o The accused made an admission that he had found the firearm in the
mountains and brought it home, which is a direct acknowledgment of
possession.
2. Forensic Evidence:
o The firearm was examined and confirmed to be a prohibited firearm with
an obliterated serial number.
o The firearm was fully functional, confirming that it met the legal definition
of a firearm under the Firearms Control Act.
o The ammunition were 15 live rounds.
o Accused did not have licence for such firearm and ammunitions.
3. Photographic Evidence (Exhibit D):
o The photos taken by Constable Khumalo confirm the location of the
firearm as described by the police officers.
o These images support the police officers’ testimony about the condition
and concealment of the firearm.
Circumstantial Evidence Supporting the State’s Case:
1. Concealment of the Firearm:
o The firearm was hidden under clothes and water inside a bucket, behind
the door.
o This suggests an intention to hide it rather than it being placed there by an
unknown third party.
2. Accused’s Inconsistent Testimony:
o The accused initially admitted to the police that he found the firearm in the
mountains but later retracted this claim, stating that he only said it
because he was allegedly assaulted.
o His version of events changed over time, weakening his credibility.
3. Accused’s Control Over His Possessions:
o The accused admitted that he commonly left his belongings outside but
stated that nothing had ever gone missing or something amiss never
happens.
o This suggests that he maintained control over his property, making it less
likely that an unknown individual placed a firearm in his bucket without his
knowledge.
4. Failure to Challenge Key State Evidence During Cross -Examination:
o The accused claimed that Sibambo kicked open his door and enter the
shack and assaulted him before the firearm was recovered, but these
allegations were not put to the State witnesses during cross -examination.
This raises doubts about the credibility of his claims.
[16] These direct evidence, including the accused’s admission and the forensic
confirmation of the firearm’s status, strongly supports the State’s case. The
circumstantial evidence, such as the concealment of the firearm, the accused’s
confidence that he always leaves his items outside the shack and nothing happens to it ,
reinforces the inference that he knowingly possessed the firearm hence, he hides it
inside the bucket with water and clothes behind the door.
[17] In light of the evidence presented, I find that the State has proven its case
beyond a reasonable doubt. The accused is found guilty as charged on both counts.
M. Munzhelele
Judge of the High Court Pretoria
Heard: 19-27 February 2025
Delivered: 3 March 2025
Counsel for the state: Adv. Tshabalala
Counsel for the Accused: Mr. Rudman